A Legal Cure for Spam Rage

By Brian McWilliams, Guest Columnist

December 27, 2004, 11:49 AM

PERSPECTIVE Here's how Lycos Europe can make amends for its failed anti-spam screensaver idea.

Forget creating software that gives Internet users the ability to launch distributed denial-of-service (DDOS) attacks on spammer Web sites. That's just wrong, from both a legal and public-relations standpoint. Instead, the big online service (or its U.S. counterpart) should begin lobbying Congress to beef up CAN-SPAM, the wimpy federal anti-spam law.

In particular, Lycos should spearhead a campaign to give disgruntled spam recipients what's known as a right to private action.

At present, U.S. citizens can't sue spammers under CAN-SPAM. Lawmakers gave that privilege exclusively to state attorneys general, the Federal Trade Commission, and Internet service providers.

Look at all the good the law has done. Since CAN-SPAM went into effect January 1, the flow of junk email has increased from an estimated 60 percent of all e-mail traffic to more than 70 percent. The percentage of spam that complies with CAN-SPAM is in the single digits.

No wonder that Internet users are resorting to vigilante DDOS attacks. Now, instead of fretting about Internet addiction, we need to find a cure for a troubling new malady known as spam rage.

Clearly, U.S. citizens have decided that government failed them when it comes to protecting their email inboxes.

But this all could change if lawmakers amended CAN-SPAM in 2005 so that private individuals had the ability to sue spammers. If U.S. citizens could sue spammers for, say, $500 per violation, I'd bet that compliance with the law would skyrocket.

To supplement the big headline-grabbing spam lawsuits from the likes of America Online and New York Attorney General Eliot Spitzer, what we need is a kind of death to spam by a thousand cuts.

An estimated 100,000 people downloaded the Lycos anti-spam screensaver in just a few days. What if each of them instead filed a $500 lawsuit in small-claims court against their least-favorite spammer. That's $50 million in potential judgments.

Granted, Joe Sixpack probably doesn't have the wherewithal to track down and sue the people who are filling his inbox with ads for porn, pills, and other crap. But here is another productive way that Lycos could save face from its ill-conceived screen-saver. The company and its lawyers could build, maintain, and publicize a clearinghouse of information on filing private, federal lawsuits against spammers. They could keep the groovy 1960s-style logo but call it the "Make lawsuits, not spam" project instead.

This proposal would surely be scorned by the Direct Marketing Association. The DMA is on record as saying that giving individuals the power to file lawsuits under CAN-SPAM would result in frivolous lawsuits against innocent people. Perhaps. But U.S. lawmakers could carefully craft the statute to minimize such cases. One option is requiring the loser to pay all court costs.

Bottom line, Congress needs to give citizens a legal way to fight back against unsolicited commercial email. With the help of forward-thinking online services such as Lycos, we can put some teeth in CAN-SPAM and cool off the anti-spam vigilantes at the same time.

Brian McWilliams is a journalist and author of Spam Kings: The real story behind the high-rolling hucksters pushing porn, pills, and @*#?% enlargements.